Fainga'a v Lelea [2005] TOSC 5; C 0038 2003 (6 January 2005)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO C 38/2003

BETWEEN:

VAITE FAINGA’A
Plaintiff

AND:

1. POLICE CONSTABLE LELEA
2. POLICE OFFICER KAILEA
3. POLICE OFFICER FELETI PAASI
4. POLICE OFFICER MANUOFETOA
5. MINISTRY OF POLICE
6. KINGDOM OF TONGA
Defendants

Heard by the Chief Justice without a jury at Nuku’alofa on 11, 12, 13 and 15 October 2004.

Counsel: Plaintiff: Mr Fifita
Defendant: Mr Kefu

JUDGMENT

Preliminary

This was a claim for unlawful arrest and false imprisonment arising out of the arrest of the Plaintiff Vaite Fainga’a on the night of Saturday 30 November 2002 and her detention overnight in the cells at the Central Police Station [CPS] until the morning of Sunday 1 December. She claimed damages of $3,000 for unlawful imprisonment (including unlawful arrest), $3,000 for injured feelings (distress, hunger, cold and humiliation), $3,500 for aggravated damages, $5,000 for exemplary damages, $500 for the intolerable condition of detention, and $8 for transportation.

Evidence

The Plaintiff Vaite Fainga’a gave evidence herself and led evidence from ‘Oto’ota ‘Uhila, Popua, a friend and neighbour; and her daughters Siulolo V Mafi and La’aina Mafi. The Defendants led evidence from the 1st Defendant, PC Sione Lelea; the 4th Defendant, WPC 1st Class Mele K Manuofetoa; ‘Elenoa Moala, Popua, the original complainant against the Plaintiff; and the 3rd Defendant, D/LCpl A Feleti Paasi, CID. On 15 October the Court also visited the cells at the Central Police Station [CPS], Nuku’alofa; and the Plaintiff’s house at Popua.

There was only a very limited dispute in evidence as to what had occurred when the accused had been taken to the CPS on the night of Saturday 30 November 2002 and detained in a cell there until the morning of Sunday 1 December. However I regret that I found that the Plaintiff and her witnesses were not entirely credible and reliable witnesses, particularly as they exaggerated some of their evidence. In general I accepted the Defendants and their witnesses as credible and reliable witnesses. Where there was a conflict of evidence in general I therefore preferred the evidence for the Defendants.
This case raises a series of factual and legal issues which have to be taken step-by-step.

Was the Plaintiff drunk?

I found that it was very clear that the Plaintiff, who is aged 45 and divorced (her married name having been Mafi), had been drinking, with among others her friend ‘Oto’ota, for a substantial part of the afternoon and evening of Saturday 30 November. She admitted to having been drinking gin under the toa tree on the edge of her allotment from 3 - 4 pm to around 6 pm, although in evidence other witnesses spoke to her drinking for much longer. Her neighbour ‘Elenoa Moala said the Plaintiff had been drinking from about 10 o'clock on the Saturday morning; and gave evidence that she had had enough of the Plaintiff getting drunk and causing a disturbance frequently, using abusive language and swearing. The Plaintiff also admitted that when the Police arrived she smelt of alcohol, but said they had finished drinking and she had not been really drunk and she had known what she had was doing, but on balance I was unable to accept that. Her own witness and friend ‘Oto’ota spoke to being at the Plaintiff's house the whole day, from morning to evening, and talking and drinking in the afternoon, starting between 12 and 1, although she said they finished drinking about 4 or 5 pm. 3 of them had drunk 1 bottle of gin between them in that time. However the Plaintiff's daughter Siulolo said her mother had not been drinking when she and her sister La'aina had gone out between 2 and 3 pm. The Plaintiff and her friends have been drinking regularly at her home since around 2000. Overall I found that the Plaintiff had been drinking for a substantial part of the afternoon and evening and in consequence had been drunk when the Police arrived at around 10.30 pm.

In addition to the evidence about the Plaintiff's regular drinking and her drinking on that afternoon and evening, there was other circumstantial evidence indicating that she had been drunk. The events with which this case is concerned started with the complaint to the Police of her adjoining neighbour, 'Elenoa Moala, that the Plaintiff had been drinking, swearing and using abusive language, and being a nuisance, which is behaviour that often accompanies drunkenness; and ‘Elenoa had told PC Lelea that the Plaintiff was drunk. Secondly, PC Lelea himself, whose evidence I accepted, said that when he went for the Plaintiff she was drunk because she smelt of alcohol and staggered when she walked. Thirdly, the Plaintiff's condition was confirmed by WPC Manuofetoa, who was on duty in the Charge Office at the CPS when the Plaintiff was brought in by PC Lelea shortly afterwards around 10.40 pm - she searched the Plaintiff and said that she had smelt of alcohol, had been mumbling, and had not complained when told she was to be put in a cell. Fourthly, I accepted the evidence, essentially unchallenged, that the Plaintiff accepted without protest being put into a cell at the CPS and then went to sleep, which appeared to be the probable reaction of a drunk person in those circumstances.

Was the Plaintiff in a public place?

The next issue is whether the Plaintiff was “found drunk in any public place” in terms of section 3(j) of the Order in Public Places Act (Cap 37), or “in any public place [was] drunk and incapable, or [was] drunk and [behaved] in a disorderly manner therein” in terms of section 3(k). In section 2 of that Act public place is defined as:

“public place means any public way and any building, place or vessel to which for the time being the public are entitled or permitted to have access either without condition or upon condition of making any payment and any building or place which is for the time being used for any public or religious meeting or assembly or as an open Court;”

and public way is defined as:

“public way means any road, highway, street, market place, bridge, wharf or other way lawfully used by the public;”

While the witnesses for the Defendants attempted to claim that the toa tree under which the Plaintiff was found by the Police was on the frontage of her property, the witnesses for the Plaintiff claimed it was at a distance of about 5 metres from the boundary, which on the site visit turned out to be around the real distance. PC Lelea could not confirm whether the toa tree was inside the boundary and the estimates of him and ‘Elenoa of its distance from the road in fact conformed to the evidence of the witnesses for the Plaintiff. The definition of the road frontage in section 2 of the Roads Act (Cap 155), referred to by Mr Kefu for the Defendants, is:

“road frontage” means the surface soil intervening between the boundary of land bordering a public road and the centre of such road;

which in the factual situation did not assist the Defendants. I therefore found on the balance of probability that at the time the Police arrived for the Plaintiff she was on her own property, which was not a public place.

PC Lelea's evidence was that the original complaint by 'Elenoa Moala to the Police had been that the Plaintiff had been drunk and swearing in front of ‘Elenoa’s shop, although in evidence ‘Elenoa herself said that she had heard the Plaintiff swearing from her (the Plaintiff's) home, from a toa tree on the frontage beside the road, ie the roadside, which she considered extended for about 2 metres. However the CPS Station Diary simply recorded at 2230 hours under Serial No SD 155:

“’Elenoa Moala (female) of Popua complained in respect of a woman named Vaite and her son Sione Fangatua Mafi that they are drunk and a nuisance at Popua seeking the assistance of Police.”

I was therefore unable to find as a fact that, on the evidence before me, at the time the Police arrived the Plaintiff had been drunk and/or causing a disturbance in a public place. However I accepted PC Lelea's evidence, which I found amounted to a belief on reasonable grounds, that he believed that the Plaintiff had been drunk and swearing in front of ‘Elenoa’s shop, ie in a public place, which is relevant to later issues.

Was the Plaintiff arrested at Popua?

The next issue to be addressed is whether the Plaintiff was arrested when Police arrived outside her house. The Plaintiff herself said that the Police arrived in their van EK 4, on which she could see the word PRISON, which she said she knew was the van normally used when offenders were being arrested. She said that the Police had come and, without getting off the van, called to her to come over, and when she asked them why, they said it was to go and do something. She did not reply to that, but only stood up and got into the back of the van. She said she was not told whether she had the choice to go or not and so considered that she was forced to go, as she saw that they were Police officers. She said that PC Lelea had told her that they would only go and come back, but PC Lelea denied that and said he told her to get into the van and they would go because there was a complaint against her at the Police Station: I preferred his evidence about that. PC Lelea said that he had not told the Plaintiff about the complaint because he knew that she was drunk and would not understand. He said he had opened the door of the van and the Plaintiff had got in and sat on a seat. I was unable to accept the Plaintiff's evidence that there was no seat in the back of the van and she had to sit on the floor. PC Lelea said that the message was to apprehend, but not arrest the Plaintiff, but went on to say in evidence that she was arrested for being drunk and causing a disturbance.

In law arrest consists in the seizure or touching of a person’s body with a view to his or her restraint; words may however amount to arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person’s notice that he or she is under compulsion and he or she thereafter submits to the compulsion: Alderson v Booth [1969] 2 All ER 271 (DC). In 2 of the classic statements of the law, in Shaaban bin Hussien v Chong Fook Kam [1969] UKPC 26; [1969] 3 All ER 1626,1629 (PC), Lord Devlin said in the Privy Council in London:

“An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when, by words or conduct, he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.”

and in Spicer v Holt [1976] 3 All ER 71,79 (HL), Viscount Dilhorne said:

“'Arrest’ is an ordinary English word. ... Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases.”

Whether on the facts of a particular case it has been made clear to a person that he or she is under arrest is a matter of fact: R v Inwood [1973] 2 All ER 645 (CA); (Halsbury’s Laws (4th Ed) Vol 11(1) para 693.

In this case, although the Plaintiff was not seized, touched or restrained, I found that the direction given by the Police officers to the Plaintiff to get into the van because they had to go and do something amounted to bringing to her notice that she was under compulsion, and she then submitted to that compulsion. I therefore found that the Plaintiff was arrested when she was told do get into the van at her house at Popua.

What power of arrest was used?

No evidence was led to show which power of arrest PC Lelea believed he was using, but he said the Plaintiff was arrested for being drunk and causing a disturbance. He claimed in evidence that the toa tree was in the frontage of the road (and so presumably a public place), though as already mentioned I was unable to accept that it was. Even if PC Lelea honestly believed that the toa tree was within the frontage of the road, in the circumstances and for the reasons given above I was unable to accept that that was a reasonable belief. There is no offence of being drunk in the Criminal Offences Act (Cap 18) and in the Order in Public Places Act (Cap 37) the offences under section 3(j) and (k) set out above relate to being drunk in a public place. Section 5 of Cap 37 (if necessary read with section 21(i) of the Police Act (Cap 35)) gives power to arrest without warrant, but that depends on the person being found committing the offence under section 3(j) or (k) by the constable.

However under section 21(a) of the Police Act:

“21. Any police officer and any person whom he lawfully calls to his assistance may arrest without warrant –

(a) any person whom he suspects on reasonable grounds of having committed a crime; ... “

The test for the lawfulness of an arrest under section 21(a) comes down to the same thing in each case - did the Police officer have reasonable grounds for the arrest? That requirement is very limited (Dumbell v Roberts [1944] 1 All ER 326 (CA)) and the Police have to act at once, on the facts as they appear on the spot and the arrest should be justified by these and not on an analysis in the courtroom later (Wiltshire v Barrett [1965] 2 All ER 271 (CA)). See also Kaufusi v Lasa & Ors [1990] Tonga LR 39,42 & 139 (CA).

Were there reasonable grounds to suspect the Plaintiff of having committed a crime?

In Fifita & Edwards v Fakafanua [1998] Tonga LR 127 (CA); [1998] TOCA 1; [2000] 5 LRC 733 (CA) the Court of Appeal stated (at p 130) that the onus on the arresting officer was to provide evidence, failing appropriate admissions, to answer affirmatively the 2 questions which were stated by Woolf LJ in Castorina v Chief Constable of Surrey (1988 The Times 15 June, unreported, but cited in Chapman v DPP (1989) 89 Cr App R 190 (DC)) (referred to in Archbold Criminal Pleading Evidence and Practice (1993) vol 1 para 15-144):

'(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2) Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.'

As those questions were referred to in submissions, it is appropriate to mention that they have now in effect been replaced by what was said by Lord Hope of Craighead in the House of Lords in London in O’Hara v Chief Constable of the RUC [1996] UKHL 6; [1997] 1 All ER 129,138-9 (HL):

“ ... the test ... is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind ... . In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.”

In other words, the test as to whether reasonable grounds for the suspicion to justify an arrest exist is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there had to be reasonable grounds for forming such a suspicion: such grounds could arise from information received from another (even if it subsequently proves to be false), provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion; but a mere order from a superior officer to arrest a particular individual could not constitute reasonable grounds for such suspicion. Whether the information provided reasonable grounds for the officer’s suspicion depended on its source and context, viewed in the light of the whole surrounding circumstances. (O’Hara; Archbold 2003 para 15-24 (the corresponding paragraph to 15-144 in Archbold 1993))

In O’Hara (p 141) Lord Hope also referred to the statement by Lord Justice Clerk Wheatley in the Scottish case of Dryburgh v Galt 1981 JC 69, 72:

“Suffice it to say that the fact that the information on which the police officer formed his suspicion turns out to be ill-founded does not in itself necessarily establish that the police officer’s suspicion was unfounded. The circumstances known to the police officer at the time he formed his suspicion constitute the criterion, not the facts as subsequently ascertained. The circumstances may be either what the police officer has himself observed or the information which he has received.”

It is not to be expected that a Police constable should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision, but he must reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. Unless he can do that he cannot inform the suspect of grounds which justify the arrest. (Chapman v DPP (1989) 89 Cr App R 190,197 (CA) per Bingham LJ)

Although PC Lelea was not specifically asked about which power of arrest he considered he was using, it was clear that all these events were triggered by ‘Elenoa’s complaint to the Police. On the evidence I found on the balance of probabilities that there were reasonable grounds for him to believe that the Plaintiff was drunk, as set out above: she smelt of alcohol and staggered when she walked and I accept that PC Lelea had an honest belief that she was drunk. In addition he had received a report from WPC Manuofetoa that there had been a complaint that the Plaintiff had been drunk and swearing in front of ‘Elenoa’s shop, ie in a public place, so I accept that he had an honest belief that the Plaintiff had been drunk and behaved in a disorderly manner in a public place, even if the evidence before me did not amount to evidence establishing that she had been drunk in a public place. Therefore PC Lelea had reasonable grounds for suspecting that the Plaintiff had committed an offence under terms of section 3(k) of the Order in Public Places Act, so on the balance of probabilities I find that the initial stage of the arrest of the Plaintiff was lawful.

Was the Plaintiff told why she was being arrested?

However on an arrest without warrant the Police officer must tell the person why he or she is being arrested unless by the circumstances he or she must know the general nature of the alleged offence: Halsbury's Laws (4th Ed) Vol 45 para 1338; Christie v Leachinsky [1947] UKHL 2; [1947] 1 All ER 567 (HL); Archbold 2003 paras 15-177 - 179. In Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521,526-7 (HL) it was stated:

“It has been well-settled law, at least since Christie v Leachinsky [1947] UKHL 2; [1947] 1 All ER 567 (HL), that a person must be informed of the reason for his arrest at or within a reasonable time of the arrest. There can be no doubt that in ordinary circumstances, the Police should tell a person the reason for his arrest at the time they make the arrest. If a person's liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment. However, it is made plain in the speeches in Christie v Leachinsky that there are exceptions to this general rule.”

It was equally clear from the evidence of both the Plaintiff and PC Lelea that she was not told, even in the briefest of terms, why she had been arrested; and I did not find that by the circumstances she must have known the general nature of the alleged offence. Even when they got to the CPS, PC Lelea's evidence was that he told WPC Manuofetoa this was the person who was the subject of the complaint from Popua, and that was all he was involved in at the CPS. WPC Manuofetoa's entry in the Station Diary at 2240 hours under SD 157 was:

"PC Lelea and Vailea returned on EK4 arresting Vaite Mafi, female of Popua in respect of complaint in entry 155 in Station Diary.

Manuofetoa searched and put her in cell No 1 until sober as she was drunk - theft."

WPC Manuofetoa said in evidence that the 2 male PCs had arrested the Plaintiff and brought her over and she had searched her. Before and after the Plaintiff had been put in the cell WPC Manuofetoa had told her the reason why she was being put in the cell - because of the complaint by ‘Elenoa Moala for her drunkenness and noisiness causing a disturbance at Popua. I concluded that the word ‘theft’ was added in after receipt of the message at SD 159 (see page 11 below).

In this case PC Lelea readily accepted that at the time the Plaintiff was told to get into the van he had not told her about the complaint, he said because he knew that she was drunk and would not understand. But on all the evidence I found that, although the Plaintiff was clearly drunk when she was arrested, she was not so drunk that she would not have understood why she was being arrested. A few minutes later, when the Plaintiff arrived at the CPS, WPC Manuofetoa must have considered her able to understand, as she said in evidence that she had told the Plaintiff the reason why she was being put in the cell both before and after she had been put in the cell. As already mentioned, I do not accept that at Popua it would have been so obvious to the Plaintiff from the circumstances that she was being arrested for being drunk that nothing needed to be said. Therefore although there were grounds for the arrest it was made unlawful by the failure of the 1st and 2nd Defendants, PCs Lelea and Vailea, to advise the Plaintiff of these.

Duration of unlawful arrest

In Holgate-Mohammed v Duke [1984] 1 All ER 1054, 1056 (HL), Lord Diplock said:

“First, it should be noted that arrest is a continuing act: it starts with the arrester taking a person into his custody (sc by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate's judicial act.”

Arrest is a matter of fact arising out of the deprivation of a person’s liberty; it is not a legal concept (though it clearly has legal consequences) and is a continuing act: Lewis v Chief Constable of South Wales Constabulary [1990] EWCA Civ 5; [1991] 1 All ER 206, 210-211 (CA) per Balcombe LJ:

“Simply as a matter of the language used, arrest ... is defined as a continuing act. It starts with the action of taking a person into custody and ... at that moment the person arrested should be informed of the ground of the arrest, either at that moment or as soon as is practicable after arrest and, if that is not so, that arrest, that taking into custody, is unlawful. But there is nothing ... which provides what is the effect of the arrested person subsequently being given the reasons for the arrest. Now, clearly, a subsequent giving of the reasons cannot retrospectively make the period between the moment of arrest and the time for giving the reasons lawful, and no one suggests that it did. The question ... is this. What is the effect of telling a person, who was initially arrested without being told of the reasons for his arrest, those reasons at a later time? ... in so far as ... arrest is a continuing act and is the process of being kept in custody or deprived of liberty, it seems to me there is nothing inconsistent ... to say that from that moment (when reasons are given) the arrest becomes lawful, or the continued deprivation of liberty becomes lawful, or the continued custody becomes lawful.”

So where an arrest is originally unlawful, on the ground that the person has not been told what acts are alleged to have constituted the offence for which he or she was arrested, the unlawfulness is cured when he or she is informed of the details at the Police Station: see also Archbold 2003 15-180; R v Kulynycz [1970] 3 All ER 881 (CA).

In this case therefore the arrest was unlawful at the start, but was legitimised and became lawful from the time WPC Manuofetoa told the Plaintiff why she was being put in the cell. It was therefore unlawful from Popua to shortly after the time the Plaintiff arrived at the CPS some 10-15 minutes later.

So the arrest amounted to a false imprisonment for that length of time and the consequence is that the detention for that length of time based on the arrest was also false imprisonment for that length of time and anyone who helped to continue it is also liable, ie PCs Lelea and Kailea, the 1st and 2nd Defendants: Clerk & Lindsell on Torts (16th Ed) paras 17-15 – 17-17 & 17-41 - 44.

Overnight detention

Section 22 of Police Act

Section 22 of the Police Act (Cap 35) provides:

“Procedure in cases of arrest without warrant

22. (1) A police officer making an arrest without warrant shall, without unnecessary delay and subject to any provisions under any Act as to bail or recognizance, take or send the person arrested before a magistrate there to be charged or before a police officer of the rank of sergeant or above or before the police officer in charge of the police station.

(2) If it is not practicable to bring the person arrested before a Magistrate having jurisdiction within 24 hours after he has been so taken into custody, the police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and shall grant or withhold bail in accordance with the Bail Act 1990.”

Section 22 is a provision aimed at safeguarding the rights of a citizen to freedom from arrest and detention without a formal warrant first being obtained for that purpose: Soakai v Taulua (PC No 6 of 1983, unreported), Tonga PC.

The Court of Appeal in Fifita & Edwards v Fakafanua [1998] Tonga LR 127 (CA); [1998] TOCA 1; [2000] 5 LRC 733 (CA) recently gave very detailed consideration to the effect of section 22. They held (at 131) that section 22(1) requires that, 'without unnecessary delay', a person arrested be taken before a magistrate or one of the Police officers described; and cited Soakai v Taulua, where it was stated:

“Subsection (2) [of section 22] is a conditional provision. It comes into operation "if it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours". If that condition is fulfilled a duty arises for the bringing of the arrested person before a designated police officer so a decision may be made which, of course, is of the same nature as that which a magistrate would perform. This does not mean a person can be held for 24 hours. As soon as it appears that no magistrate will be available as a practicable procedure sub-section (2) will apply ... The scheme of section 22 then is that, if a magistrate is available, the arrested person is to be taken before him without unnecessary delay, but, if that is not a practicable step which can be taken within a period of 24 hours, then the arrested person must be taken before a designated officer who must perform what might be called the functions of a magistrate.”

The same view had been taken in Kingdom of Tonga v Finau (23 June 1993, unreported), Tonga CA, where it was said:

“In our opinion this was not a case where the police officer had the jurisdiction to inquire into the case and release. The authority given an officer by section 22(2) is circumscribed by the opening words of the subsection ... ”

As had been pointed out in Soakai v Taulua, the Court of Appeal in Fifita & Edwards v Fakafanua (at 131) emphasised that the authority conferred on a designated Police officer by section 22(2) cannot be augmented by reference to section 22(1), because that subsection says nothing about what he can do; in mentioning such an officer, it merely makes an anticipatory reference to the provision in sub-section (2). Although section 22(2) was repealed and replaced by the Police (Amendment) Act 1990 when the Bail Act 1990 came into force, the form of the new provision leaves that reasoning unimpaired.

The Court of Appeal in Fifita & Edwards v Fakafanua went on to state (at 131-2):

“The key question relates to the meaning of the expression 'without unnecessary delay'. When section 22 was first enacted, sub-section (2) included the reiteration 'but where a person is kept in custody he shall be brought before a magistrate's court as soon as practicable'. Although these words have since been repealed, they cast light on the meaning intended to be conveyed by the expression 'without unnecessary delay', upon compliance with which they were plainly intended to insist. They also continue to be reflected in the opening words of sub-section (2). Thus it is apparent that the two expressions refer to the same requirement. Performance that is without unnecessary delay is performance that is carried out as soon as practicable. ...

The statutory requirement to bring the arrested person before a magistrate 'without unnecessary delay' or 'as soon as practicable' may involve, perhaps, some softening of the common law, by which, as Lord Atkin said in Liversidge v Anderson [1941] UKHL 1; [1941] 3 All ER 338,360 (HL), the arrested person 'must at once be brought before a judicial tribunal' (our emphasis).”

In Fifita & Edwards v Fakafanua (at 132-4) the Court of Appeal pointed out that as the legislature of Tonga had enacted legislation on the matter, the question is not what the law permits elsewhere, but what the Tongan statute means; and that decisions in England, Australia, New Zealand and, indeed, other countries, may assist the Court in the task of interpreting the Police Act. The Court of Appeal referred to the review in detail of the case law and legislation in this area in the High Court in Australia in Williams v R [1986] HCA 88; (1986) 161 CLR 278, also making reference to the statement in R v Iorlano (1983) 151 CLR 678,680 with reference to the expression 'without undue delay':

“There is simply nothing in the provisions of [the section], or in the context in which [it] appears, that suggests that the fact that the arresting officer desires to question the arrested person affords any legitimate reason for delay in taking him before a justice. The section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the arresting officer wished to engage in questioning.”

In Williams v R it was stated in relation to the words 'as soon as practicable' (at 297):

“Those words are not intended to deny the operation of a principle which protects the liberty of the subject, and to construe those words as authorizing detention for interrogation and investigation runs counter to the rule that any statute which authorizes the detention of a person must be strictly construed ... ”

and it was also stated there (at 313):

“The common law requires an arrested person to be taken before a justice as soon as is reasonably possible and the words "as soon as is practicable" should be taken to mean the same thing. Neither the common law nor the statute permits delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. What is reasonable will depend upon all the circumstances, including the availability of a justice, but it does not encompass delay of that kind.”

Fifita & Edwards v Fakafanua (at 132-4) can be referred to for the Court of Appeal’s detailed consideration; and ultimately they followed the view of the High Court of Australia, who had declined to apply the English case of Holgate-Mohammed v Duke in Australia.

The Court of Appeal itself stated in Fifita & Edwards v Fakafanua (at 134):

“The fact that section 22 of the Police Act of Tonga was enacted for the specific purpose, as the Privy Council pointed out in Soakai, of 'safeguarding the rights of a citizen' lends weight to the consideration urged in the High Court of Australia that any authority given by this law to infringe individual liberty should be construed strictly. What section 22 insists must be done 'without unnecessary delay' is not the interrogation of an arrested suspect, but his taking before a magistrate. There is no warrant for reading the provision as if it referred to the practicability of interrogation. Delay caused by a desire to ask questions is not authorised by the section; indeed, the bringing of the person arrested before a magistrate as soon as practicable is the safeguard for the citizen the legislature has chosen to provide.

In our opinion, it is not right to say that no questions may be asked by police about the offence of which an arrested person is suspected. A few simple questions may resolve some doubt, and even lead to the immediate release of the suspect. But the safeguard requiring that the arrested person be brought before a magistrate without unnecessary delay is primary and must be fully observed.”

It was also ruled in Soakai v Taulua that each case depends on its own particular circumstances and that whether the procedure had been carried out "without unnecessary delay" was a question of fact in each case for the court.

For completeness I also mention what I set out in R v Vaiangina [1990] Tonga LR 118, 119:

“When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. This is so whether or not the person has been taken into custody.

All citizens have a duty to help police officers to discover and catch criminals.

But apart from arresting him, the police cannot compel any person against his will to come to or remain in a police station.”

The following morning

The next issue is what should happen the following morning, when a person only arrested for drunkenness, such as the Plaintiff, has sobered up as anticipated.

I heard that the ordinary practice with people arrested for being drunk is to detain them overnight and, if they are sober the following morning, either release them or take them then before a Magistrate. I was told that there is a direction in the Magistrates Court that the Police are not to take any accused who is drunk to the residence of a Magistrate. I accept that that is a sensible and reasonable direction; and I also accept that around 10.40 pm on a Saturday night was too late an hour to take a person such as the Plaintiff arrested only for drunkenness to the residence of a Magistrate.

There is no problem if the following morning the arrested person is taken to a Magistrate, but that did not happen with the Plaintiff. There was evidence from LCpl Paasi that when a person is arrested and taken to a Police Station for being drunk, he or she will be put in a cell until he or she is sober. Then once he or she is sober the Police will take him or her before a Magistrate, or may simply reprimand him or her (depending on the nature of the offence and what the officer in charge of the Police Station directed). LCpl Paasi said that in this case as the complaint had come from a neighbour, if the Plaintiff had been charged, that might have resulted in she and the neighbour being on bad terms. He said that it was normal that a person found drunk in a public place would not be charged, as Police officers had the power whether to charge or not and it would depend on the nature of the drunkenness and the arrested person's conduct in a public place. LCpl Paasi said that directions had been given to the Police by Magistrates that if a person was brought in for drunkenness he or she was not required to be taken to a Magistrate because that might cause a disturbance. He said it was the same when a person was arrested during the weekend and the Magistrates’ Court Office was closed, the Police had authority to keep such a person in custody until the Court Office was open, which is still the usual practice.

I have to say that it seems a very sound commonsense approach for the Police to keep a drunk person who has been arrested only for drunkenness in custody overnight and then, if there are no other grounds for retaining him or her in custody, release him or her when sober in the morning with a reprimand only. That was formerly given some legislative sanction by the proviso to section 22(2) of the Police Act, which stated:

“Provided that such police officer concerned may release a person arrested on suspicion of having committed any offence when, after due enquiry, he is of the opinion that insufficient evidence is disclosed on which to proceed with the charge:”

However that proviso was repealed (perhaps inadvertently) when the new section 22(2) taking account of the Bail Act 1990 was introduced in 1990, and does not seem to have been replaced. But in principle it can seldom be wrong for a Police officer to release a person in custody and restore his liberty as soon as it is found that there is insufficient evidence to proceed with the charge. There might be a risk of the Police abusing their power of arrest without warrant by rounding up people on trumped-up charges and taking them into custody for almost 24 hours, then releasing them without charge, but a very strong sanction against that must be the likelihood of them being found personally liable for large sums in damages.

It follows that in this case I therefore find nothing wrong in the Plaintiff being released without charge at 1020 hours on the Sunday morning – apart of course from the intervening questioning by LCpl Paasi, which I shall come to shortly.

In any other case – ie where a person arrested for drunkenness is not going to be released once sober - to comply with section 22 it is clearly essential for a person arrested under section 21 without warrant to be taken before a Magistrate without unnecessary delay – and without having been asked any more than a few simple questions – there to be charged.

I was asked by Mr Kefu for the Defendants to give a view on these matters as guidance for the Police in relation to the arrest and detention of drunken people., The following remarks are therefore only obiter and do not form part of the decision in this case. If it is correct, I am concerned to hear that those arrested for offences other than drunkenness may simply be detained in the cells for the rest of the weekend and not taken before a magistrate until the Monday, ie over 24 hours later. The terms of section 22, taken with the Bail Act 1990, are clear and must be followed: this Court is unlikely to consider that it is impracticable to bring a person arrested before a Magistrate within 24 hours simply because it is the weekend.

Plaintiff held for questioning on Sunday morning

Shortly after the Plaintiff had been brought to the CPS on the Saturday evening, a message had been received from the Police Training School which was recorded in the Station Diary as Serial No 159 at 2245 hrs as:

"PC Lufe from Huni [code name for the Guardhouse at the Police Training School at Longolongo] rang and conveyed the direction from the Minister of Police regarding the woman Vaite Mafi shown in SD 157 that she should not be released from the cells until D/LCpl Paasi attends and works on her in relation to the clothing she is wearing. It was a complaint from the workers at the M O P's bush allotment at Mataki’eua regarding missing clothes. LCpl Paasi will complete the work tomorrow."

As this was produced by the Defendants, I had no reason to doubt the credibility and reliability of the statement that it was on the direction of the Minister of Police that the Plaintiff was to be detained for further questioning, particularly as that complaint was from workers at his allotment.

WPC Manuofetoa said that after she had received a message she had contacted the Duty Officer that day, D/ACIP Helepiku, who had asked that LCpl Paasi should go and contact him at his residence in order to complete the requirement from Huni.

In accordance with that instruction the Plaintiff had been held the following morning until LCpl Paasi had seen her at 0910 hours (as recorded in the Station Diary at SD 79). He said that he knew the Plaintiff very well as the Minister of Police had helped her son Leimoni by giving him a job at his bush allotment and LCpl Paasi had often taken the boy with some food from the Minister of Police to the Plaintiff's house to assist her with living.

LCpl Paasi said that he had asked the Plaintiff about the T-shirt she was wearing and she had told him that it belonged to Pauli Longani, son of her niece, who was working at the Minister of Police's allotment and it had been brought over by her daughter Siulolo, who had swapped it with Pauli. LCpl Paasi said that as the Plaintiff did not have any change of clothes at the CPS, she should look after the T-shirt at home and he would contact Pauliasi [Pauli] to check whether he wanted the case taken to court or not. He said that while he had been talking to the Plaintiff, Siulolo had appeared and he had asked her about the T-shirt, when she had admitted that she had taken the T-shirt to their home. He had then told the Plaintiff that she would be returned to the Charge Office as he had not brought her in and after 10 or 20 minutes she had been taken back to the cells at around 0920 hours (SD 80) so that the Charge Office could complete their work. The Plaintiff had then been released at 1020 hours (SD 88).

Applying all the principles of law referred to above to the interpretation of section 22 of the Police Act in the present case, while it might have been acceptable on the Sunday morning to have asked the Plaintiff a few simple questions about the alleged offence for which she was arrested, ie being found drunk in a public place, before being released, that is not at all what happened.

What did happen was that she was kept in custody - possibly longer than would have been normal - until LCpl Paasi arrived to ask her questions about another alleged offence relating to the T-shirt she was wearing. It would have been perfectly possible for her to be released from custody and then asked to answer questions about the T-shirt. While there may have been nothing sinister in itself in asking the Plaintiff questions about that alleged offence, or even to have re-arrested her (after her release from the drunkenness custody) in relation to that alleged offence, that was not what happened. What happened was, as stated above, that the detention in custody of the Plaintiff was unnecessarily prolonged for the purpose of questioning her about the other alleged offence. In the circumstances that was not permitted by law and amounted to a further period of false imprisonment, even if the period involved was relatively short. On the evidence I found that period to be no longer than an hour.

False imprisonment

The law on false imprisonment was recently reviewed (in particular damages for it) comprehensively by the Court of Appeal in Edwards v Pohiva (Cross Appeal) [2003] TOCA 8; CA 01 & 10 2003. The Court of Appeal accepted that the law relating to the tort of false imprisonment is well-established, being a form of trespass to the person. As stated by Lord Bridge in Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733,743 (HL):

"The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."

It is a tort of strict liability. There is no onus on a Plaintiff to prove that the imprisonment was unlawful or malicious. Once the Plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. It may be so, for example, if it is pursuant to an order of the court or the exercise of statutory powers. An action for false imprisonment will succeed or fail depending on whether the defendant can, as a matter of law, justify the detention or imprisonment.

In this case I found that the fact of the Plaintiff's imprisonment was not disputed; and for 2 periods - the first of 10-15 minutes from her original arrest until shortly after her arrival at the CPS, and the second the following morning for no longer than an hour due to the requirement by the Minister of Police or the Duty Officer that she be questioned by LCpl Paasi about the alleged theft - there was an absence of lawful authority to justify the Plaintiff's imprisonment.

In relation to the first period, it is clear that those liable jointly and severally were the 1st and 2nd Defendants, Police Constables Lelea and Kailea, plus vicariously the 5th and 6th Defendants the Ministry of Police and the Kingdom of Tonga. In relation to the second period, it is slightly more difficult to ascribe liability. WPC Manuofetoa went off duty at 0820 hours (as shown by the Station Diary) so cannot be held liable, but LCpl Paasi, who carried out the questioning of the Plaintiff, although briefly, must have known that she had not been arrested on a charge of theft, so he is liable to that extent. Others who would have been liable would have been the Minister of Police himself and the Duty Officer, D/ACIP Helepiku, but as neither were defendants, liability for their actions is born vicariously by the Ministry of Police and the Kingdom of Tonga. In relation to the second period, those liable jointly and severally were therefore the 3rd Defendant LCpl Paasi, plus vicariously the 5th and 6th Defendants the Ministry of Police and the Kingdom of Tonga.
So the consequence of that further period of false imprisonment was again that anyone who helped to continue it is also liable (Clerk & Lindsell on Torts (16th Ed) paras 17-15 – 17-17 & 17-41 - 44).

On this analysis I did not find that WPC Manuofetoa was in any way liable to the Plaintiff, as the evidence showed that she simply followed instructions and did all that was required of her in a proper manner. Although later she had gone to the Plaintiff, who is one of her neighbours, to make a formal apology when the Plaintiff laid a civil claim against her, I interpreted that more as an attempt at reconciliation of friendship (as WPC Manuofetoa said, so that the Plaintiff could be satisfied), and indeed the Plaintiff had told her she was not angry with her, but she blamed LCpl Paasi for putting her in the cell and considered that WPC Manuofetoa had nothing to do with it. After that they had been on good terms.

Damages - general

As mentioned already, the Plaintiff claimed damages of $3,000 for unlawful imprisonment (including unlawful arrest), $3,000 for injured feelings (distress, hunger, cold and humiliation), $3,500 for aggravated damages, $5,000 for exemplary damages, $500 for the intolerable condition of detention, and $8 for transportation.

The law attaches supreme importance to the liberty of the individual and if he or she suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage: Murray v Ministry of Defence [1988] UKHL 13; [1988] 2 All ER 521,529 (HL).

In Edwards v Pohiva the Court of Appeal accepted that for the assessment of general and aggravated damages the relevant basic principles are now well established, having been comprehensively analysed in 2 recent English cases. First in Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1997] 2 All ER 762 (CA), and then more recently, by both the Court of Appeal, (Lord Woolf MR) and the House of Lords in R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] EWCA Civ 1042; [1998] 4 All ER 993 (CA) & [2001] 2 AC 19 (HL). The House of Lords upheld the approach outlined by Lord Woolf in the Court of Appeal, which Lord Hope (at 40) described as a guideline "in an area where guidance was almost entirely lacking".

In calculating the proper compensation for loss of liberty the analogy with personal injury cases is closer than cases of defamation and the compensation is for "something which is akin to pain and suffering". In relation to aggravated damages a penal element can properly be involved, however "aggravated damages ... are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated": Thompson (at 771-2 per Lord Woolf MR).

The principles are then summarised in the form of the guidance to be given to a jury (p 774-7):

“(1) Save in exceptional situations ... damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.

(2) As the law stands at present compensatory damages are of two types. (a) ordinary damages which we would suggest should be described as basic, and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant's conduct which justify the award of aggravated damages. (... in the rare case where special damages are claimed in respect of some specific pecuniary loss this claim should be explained separately.)

(3) ... the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff. ... .

(4) ...

(5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of .being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale. (These figures are lower than those mentioned by the Court of Appeal of Northern Ireland in Oscar v Chief Constable of the Royal Ulster Constabulary [1992] NI 290 where a figure of about £600 per hour was thought to be appropriate, for the first 12 hours. That case, however, only involved unlawful detention for two periods of 30 minutes in respect of which the a Court of Appeal of Northern Ireland awarded £300 for the first period and £200 for the second period. On the other hand the approach is substantially more generous than that adopted by this court in the unusual case of Cumber v Chief Constable of Hampshire Constabulary (1995) Times, 28 January in which this court awarded £350 global damages where the jury had awarded no compensatory damages and £50 exemplary damages.)

(6) ... .

(7) The figures which we have identified so far are provided to assist the judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can vary dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner.

(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high-handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted. (The aggravating features listed take account of the passages in the speech of Lord Reid in Broome's case [1972] UKHL 3; [1972] 1 All ER 801 at 836[1972] UKHL 3; , [1972] AC 1027 at 1085 and Pearson LJ in McCarey v Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 at 957, [1965] 2 QB 86 at 104-105.)

(9) The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. ...

(10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.

(11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory and not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.

(12) Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (this guidance would not be appropriate if the claim were to be met by insurers); and (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.

(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.

(14) In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury consider that this conduct caused or contributed to the behaviour complained of.

The figures given will of course require adjusting in the future for inflation. ... In giving guidance for aggravated damages we have attached importance to the fact that they are intended to be compensatory and not punitive although the same circumstances may justify punishment.

......

In deciding upon what should be treated as the upper limits for exemplary damages we have selected a figure which is sufficiently substantial to make it clear that there has been conduct of a nature which warrants serious civil punishment and indicates the jury's vigorous disapproval of what has occurred but at the same time recognises that the plaintiff is the recipient of a windfall in relation to exemplary damages. As punishment is the primary objective in this class of case it is more difficult to tie the amount of exemplary damages to the award of compensatory damages, including aggravated. However, in many cases it could prove a useful check subject to the upper limits we have identified if it is accepted that it will be unusual for the exemplary damages to produce a result of more than three times the basic damages being awarded (as the total of the basic aggravated and exemplary damages) except again where the basic damages are modest.”

The Court of Appeal accepted those principles in Edwards v Pohiva.

Expanding on this in the Court of Appeal in London in Brockhill Prison, Lord Woolf (at 1005) noted:

" ... there can be two elements to an award of damages for false imprisonment; the first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from loss of liberty."

and he went on to give more guidance that it was right to use a global approach in this type of case (at 1005):

“We recognise that it is possible to work out a daily, weekly, or monthly figure from this amount for the approximately 2 months extra imprisonment of this case but we discourage such an exercise. No 2 cases are the same. The shorter the period, the larger can be the pro rata rate. The longer the period, the lower the pro rata rate.”

Applying these principles to this case, although one global award would obviously be preferable, I believe it is necessary to break down the award into 2 separate awards as the defendants who are liable differ in each case, and in any event the 2 incidents were really quite distinct in nature.

Damages – 1st period of false imprisonment

First I have to make it clear that I did not accept that the Plaintiff's claims for damages for incidents arising out of her arrest and detention in custody were sufficiently directly related to the 2 periods of false imprisonment to qualify to be included in the court's award of damages. These included the return taxi fare of $8 for her 2 daughters Siulolo and La'aina to go to the CPS to attempt to see her shortly after her arrest; the alleged serious burn caused to her granddaughter because of her absence; the alleged resultant adverse impact that had on the Plaintiff's ability to make Tongan handicrafts for sale; the alleged absence of food for the family meal on the Sunday; and the alleged intolerable conditions of detention, for which the Plaintiff claimed $500. In any event, apart from the taxi fare, none of the amounts of those claims were established on the balance of probabilities to my satisfaction. In addition, I found those claims far-fetched and was unable to accept the evidence of the Plaintiff and her witnesses about them as credible and reliable. For example, the alleged absence of food for the family meal on the Sunday, when the Plaintiff had been arrested as late as 10.30 pm the previous evening, appeared to owe more to the Plaintiff having been sitting drinking for most of the day than to her arrest in the late evening; and if the baby was in fact injured (of which there was no independent evidence), that was more likely to be due to both the Plaintiff's daughters having rushed off to the CPS, instead of 1 of them having stayed at home to look after the child. Having viewed the cells at the CPS, I was unable to accept that they amounted to intolerable conditions of detention, particularly as I accepted the evidence of WPC Manuofetoa that she checked regularly on the Plaintiff, who had been drunk and slept most of the night when she was in a cell.

In this case in relation to the first short period of false imprisonment of 10-15 minutes I believe a fairly nominal award of damages is appropriate, given that the applicant’s loss of liberty was largely technical, as her arrest was otherwise lawful and appears to have been the correct course for PCs Lelea and Kailea to take in the circumstances. I also take into account that it may not have seemed immediately necessary to inform the applicant as she was so cooperative in getting into the Police van immediately she was asked. It was also slightly borderline whether the accused was sufficiently sober to really understand why she was being arrested. But I do not wish anyone to get the impression that telling a person arrested the reason why he or she is being arrested is simply a technicality or minor matter. As already stated, if a person's liberty is being restrained, he or she is entitled to know the reason.

It is difficult to decide on an appropriate figure for damages in relation to the first period. In Edwards v Pohiva, in a much worse case, the Court of Appeal awarded $30,000 for 25 days false imprisonment, or approximately $1,200 per day, which by way of illustration would scale down to $50 per hour, although I appreciate and accept what has been said by Lord Woolf about the inappropriateness of such an approach. Making a comparison with the recommendations in Thompson and the Court of Appeal’s awards in Edwards v Pohiva and taking into account levels of ordinary income in Tonga, the value of money here and the different standards of living and standards of wealth in the UK and Tonga (as recommended in Manu & Kingdom of Tonga v Muller [1997] Tonga LR 192 (CA)), I consider these amounts translate here to around $200 for the first hour and around $1,000 for 24 hours.

In this case I believe that the award of basic damages for the first period of false imprisonment, to include compensation for the Plaintiff's loss of liberty for that short time and the damage to her reputation, her humiliation, shock and injury to feelings - bearing in mind that the Plaintiff had never previously been arrested, but balancing against that that she was indeed drunk that evening and was genuinely believed to have been drunk in a public place - should be $200 even for that short period, to mark the seriousness of the failure to advise her of the reason for her arrest. But beyond that I did not consider that there were any aggravating features (as described by Lord Woolf) about the conduct of the defendants concerned which would result in the Plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award, so that an award of aggravated damages was not justified.

It followed in relation to the first period of false imprisonment that I did not consider that the compensation awarded by way of basic and aggravated damages was in all the circumstances an inadequate punishment for the defendants, so that there was no reason to make an award of exemplary damages which would in effect be a windfall for the Plaintiff.

Damages – 2nd period of false imprisonment

The second period of false imprisonment is somewhat different in character. It was not just a simple oversight or misunderstanding by a Police constable on duty on the street. The instruction came from the then Minister of Police himself (who as a qualified lawyer would be expected to know the correct legal position, which had been laid down by the Court of Appeal in 1998 in the case of Fifita & Edwards v Fakafanua [1998] Tonga LR 127 (CA), involving him personally as an appellant, and repeated in 2000 in Lavaka v Ministry of Police [2000] TOSC 46); and was endorsed by the senior Duty Officer, D/ACIP Helepiku. Even although at the end of the day the interview by LCpl Paasi only involved a few simple questions and resulted in that matter being cleared up, that is not the point. The point is that the questions related to an entirely different alleged offence from the one for which the Plaintiff had been arrested; and in fact that process prolonged her detention, albeit only for an hour.

The same factors come into play in relation to the basic award for the second period of false imprisonment and I consider that a similar basic award of $200 is appropriate. However in this case I consider that there are aggravating features about the conduct of the Minister and the Police officers concerned which justify a vicarious award of aggravated damages to mark the serious view the Court takes of their conduct. In this case the aggravating features were that conduct of those responsible for the arrest, as described above, which showed that they had behaved in a high-handed and oppressive manner in relation to the imprisonment of the Plaintiff. I therefore consider that that would result in the Plaintiff not receiving sufficient compensation for the injury she suffered if the award were restricted to a basic award, so that an award of aggravated damages of an additional $200 was justified. On the other hand, beyond that small additional award I do not consider that the Plaintiff actually suffered by being detained for a further hour, so I do not think the whole circumstances merit an award of say $1,000 in the range described by Lord Woolf MR in Thompson at para (10).

Despite the behaviour of the relevant Defendants in relation to the second period of false imprisonment, I did not consider that in all the circumstances the compensation awarded by way of basic and aggravated damages was in all the circumstances an inadequate punishment for those Defendants, so that once again there was no reason to make an award of exemplary damages which would in effect be a windfall for the Plaintiff.

The result of these 2 awards will therefore be awards to the Plaintiff totalling $600 in all, which I believe that the end of the day properly reflects on the one hand the failure in and deliberate disregard respectively of proper police procedures, but on the other hand the relatively minor nature of the resultant wrong done to the Plaintiff, who prior to her arrest had been drunk and causing a disturbance and was appropriately arrested and detained overnight.

Conclusion

The final result is thus that judgment will be entered for the Plaintiff as follows:

(a) against the 1st, 2nd, 5th & 6th Defendants jointly and severally for basic damages of $200.00;

(b) against the 3rd, 5th & 6th Defendants jointly and severally for basic and aggravated damages totalling $400.00.

No interest was claimed and so I do not consider it appropriate in the circumstances to award any.

Costs

As neither side has been entirely successful, but each side has been partially successful in their claims and defence respectively, I shall meantime make no order as to costs, but I shall leave it open to the parties to make further submissions on costs if they wish, either orally or in writing.

NUKU’ALOFA: January 2005.

CHIEF JUSTICE

THIS ACTION having been tried before Chief Justice Webster without a jury at Nuku’alofa, and Chief Justice Webster having this day ordered that the judgment which follows be entered for the Plaintiff.

IT IS ADJUDGED THAT:

1. The 1st, 2nd, 5th and 6th Defendants jointly and severally do pay to the Plaintiff the sum of $200.00.
   
2. The 3rd, 5th and 6th Defendants jointly and severally do pay to the Plaintiff the sum of $400.00.
   

3. No order is made meantime as to costs.

DATED January 2005.